| S.C. | Jun 30, 1888
The opinion of the court was delivered by
The facts of this case will be found stated in the decree of his honor, the presiding judge, T. B. Eraser, hereto appended. Also, see exceptions appended.
It will be seen from the decree, that Judge Eraser held the claims of the three plaintiffs, Lou, Robert, and Sarah, barred by the statute of limitations. The appeal of said plaintiffs assigns error to this holding. This question, which is the main and vital question in the ease, depends upon other subsidiary questions which his honor considered and decided, as involved in and leading up to this main question. They are therefore also before us. These questions are: first, was the settlement of John Ariail, made before the ordinary of Pickens District in February, 1868, and his discharge, an act throwing off his trust such as gave currency to the statute ? And if so, second, did his honor err in holding that the statute began to run as to éach of the plaintiffs as they reached their majority respectively, and that each was barred at the end of four years and nine months from said major
John Ariail died in August, 1870, leaving a will in which he devised his re.al estate to the defendants and to Eliza M. Hendricks, née Ariail, his children. The last named died intestate after her father, leaving the defendant, George Hendricks, her only heir at law. John Ariail had administered upon the estate of John IT., deceased, the father of the plaintiffs, and he died some two years or more after his settlement and discharge in 1868, above mentioned. In 1883, some thirteen years after the death of John, and fifteen years after his settlement and discharge aforesaid, the plaintiffs brought action against his executor, one Gary (the action above referred to), in which they obtained a judgment for $1,450.70, May 6, 1885. The cause of action in this suit is not stated in the “Case”; we suppose, however, it was based on alleged errors in the settlement of the said John in 1868. A nulla bona return was made on the execution issued upon said judgment July 6, 1885. Whereupon the action below was immediately commenced, to wit, on July 9, 1885, the purpose of which was to subject the real estate devised to the defendants by the said John Ariail to the payment of said judgment. In other words, it is an action to subject real estate devised in the possession of the devisee to the payment of an alleged debt of their ancestor.
Doubtless there were errors in the settlement made by John Ariail, administrator, in 1868, of the estate of his intestate, John H. Ariail. The referee so found, and the Circuit Judge concurred in said finding. And if the rules of law applicable to such cases allowed, this court would not hesitate to have them corrected. But the question before us is not whether errors were committed in said settlement, but whether it can now be
The statute of limitations may sometimes work a great hardship in special cases, but under the principle that litigation and contention must have an ending, and that the repose and quiet of the many compensates for the loss of the few, such statutes have been adopted and strictly enforced in most countries as wise, and as contributing to the best interests of society. Such is the doctrine in this State. We cannot, therefore, base our judgment in this case upon the fact merely of said errors. Indeed, if the statute applies, we cannot judicially know of such errors, much less allow them to influence our conclusions.
We think the ruling of the Circuit Judge, that the settlement and dismissal of John Ariail in 1868, was a disavowal of his trust as administrator, was in accordance with the law of this State, as laid down in several cases, especially in the case of Fricks v. Lewis, the last case on this subject, found in 26 S. C., 237. See also the cases there cited, to wit: Payne v. Harris, 3 Strob. Eq., 42; Pettus v. Clawson, 4 Rich. Eq., 101; and Brockington v. Camlin, 4 Strob. Eq., 196. In Fricks v. Lewis, this court held that an order of the Probate Court granting a final discharge to an administrator, on his ex parte application, was a disavowal of the trust on the part of the administrator, and gave currency to the statute ; and further, “that acts done in a proper public office, and open to inspection, are notice to all interested.” And the language of Willard, C. J., in the ease of Renwick v. Smith (11 S. C., 303), was quoted, where he said: “The currency of the statute does not necessarily depend upon the fact of a full and final discharge of the duty of the administrator. It commences to run when it appears that the administrator has done some act, brought to the notice of the parties affected by it, equivalent to an abandonment of such office, although such act may7 be in itself wrongful.” And Mr. Justice Mclver, who delivered the opinion in Fricks v. Lewis, after stating as above, that acts done in a proper public office was notice, &c., further said, “that it was not necessary to show that notice had been brought home to those interested.”
The Circuit Judge having found that the return of John Ariail
The next question in order is, did the action of these plaintiffs in 1883, against Gary, the executor of John Ariail, arrest the statute as to the defendants, devisees, and give it a new starting point either at the commencement of said action or at the judgment obtained therein in 1885 ? The Circuit Judge held that it did not. In Bird v. Houze (Speer Eq., 256), the court held that although under the statute of George II. lands in the possession of the heir are liable for the payment of the simple contract debts of the ancestor, yet in that case the cause of action must be established against the heir, and he is not bound by a judgment against the executor or administrator, to which he was neither party nor privy; saying that it was so decided in Vernon v. Valk, 2 Hill Ch., 261. A devisee occupies the same position as the heir as to this matter, and the same doctrine applies to each. True, in Bird v. Houze, the judgment obtained against the administrator was upon a note which was out of date before the action was commenced, and the administrator failed to plead the statute; but the ground upon which it was held that said judgment did not bind the heir, was because he was neither a party nor a privy to the action against the administrator, and that the law required that the debt should be established against him (the heir) before the lands descended could be reached.
If this be'good law in this State (and it must be, as Bird v. Houze has never been questioned), how could plaintiffs’ judgment have any effect upon the rights of these defendants as devisees ? They were neither privies nor parties to said judgment. They neither appeared in it, nor had they the right to so appear. The doctrine of Houze and Bird was reaffirmed in Gilliland and Howell v. Caldwell (1 S. C., 197), where Chief Justice Moses
The judgment against the executor, then, having no effect whatever upon the heirs or devisees, and it being necessary that plaintiffs’ cause of action, if any, should be established against them in a suit to which they are parties, as in the case below, we think they had the right to set up any defence available at the time, including the statute of limitations, without regard to the action against the executor of their father in 1883, which, in our judgment, did not arrest the currency of the statute commencing in 1868. Nor was it necessary to have a return of nulla bona on said judgment before action accrued against the devisees. Reeder v. Speake, 4 S. C., 293; Lanier v. Griffin, 11 Id., 582. Conceding that the statute of limitations of force before the adoption of the code is to prevail, which is admitted by the plaintiffs, appellants, then the four years and nine months applied by the Circuit Judge, properly barred all of the plaintiffs except Eliza C., who was decreed to have judgment for $350.38, with interest from September 20, 1886.
The case of Shaw v. Barksdale, 25 S. C., 204, upon which the plaintiffs, appellants, in part rely, was a different case from the one at bar. In that case, the question involved was the presumption of payment from lapse of time ; here it is the bar of the statute of limitations. Shaw a. Barksdale, therefore, is not in conflict, nor has it any application here.
As to the relief asked on the ground of fraudulent conduct in the administrator. There are no allegations in the complaint raising this question ; nor that said fraud was discovered within the statutory period. Nor did his honor make any ruling below on this subject. This matter, therefore, is not before us.
The defendants also appealed, upon the ground that his honor erred in not holding that Eliza C. Ariail was barred also, she having attained her majority on September 25, 1882 ; and there
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.